In Constitutional Interpretation: Reclaiming the High Road, William P. Marshall, Kenan Professor of Law, University of North Carolina School of Law, exposes the disconnect between conservative rhetoric and jurisprudence over the last thirty years and calls for “a return to judicial decision-making that is perceived as legitimate because it actually is.” Professor Marshall notes that movement conservatives “engaged in a concerted effort to change the political perceptions surrounding judicial decision-making,” criticizing decisions with which they disagreed as “judicial activism” and professing originalism to be the one true faith. Yet, in numerous cases, conservatives abandoned originalism when that methodology did not lead to a politically conservative result. Professor Marshall argues that to remedy this problem, we should not advocate, as some progressives have, that the Constitution justifies “whatever results these progressives believe are appropriate” but rather “return to decision-making that is driven by high jurisprudential principles and not ad hoc results.” Professor Marshall contends, “The Constitution is a progressive document . . . based on principles of freedom, equality and democracy.” Nevertheless, “[i]t is inevitable that a court truly wrangling with numerous questions of constitutional law will reach some results that progressives (or anyone else for that matter) will not like as a political matter.”

An article from last October's "Keeping Faith with the Constitution in Changing Times" symposium, co-sponsored by Constitutional Interpretation and Change Issue Group and Vanderbilt University Law School. The symposium was held at Vanderbilt University Law School in October 2006.

In Constitutional Fidelity and Democratic Legitimacy, Robin West, Professor of Law, Georgetown University Law Center, advocates for the legislative branch to take a more active role in constitutional interpretation. Professor West contends, “The way to express fidelity toward a constitutional vision that insists only on equality, equal compassion, and self-governance, is through the profoundly respectful, and deeply ennobling, but utterly ordinary practice of politics, and not through adjudicative process. One way to express fidelity with a text that directs us to give equal protection of the law to all, and to respect the privileges and immunities of all co-citizens, and otherwise, to self-govern, might be to constantly ask, and re-ask ourselves . . . as we go about this work of self-governance: What would an ideally conscientious, morally responsible legislator--not judge--do?”

An article from last October's "Keeping Faith with the Constitution in Changing Times" symposium, co-sponsored by Constitutional Interpretation and Change Issue Group and Vanderbilt University Law School. The symposium was held at Vanderbilt University Law School in October 2006.

In Constitutional Interpretation as Structured Choice, Peggy Cooper Davis, John S. R. Shad Professor of Lawyering and Ethics, New York University Law School, explores the history of the Reconstruction Amendments and the element of choice in legal decision-making. Professor Davis explains, “The liberty promised by the Fourteenth Amendment and extended to all by the interaction of the Thirteenth and Fourteenth Amendments was understood as slavery’s opposite. Enslavement turned on denying natal ties; to be a slave was to be the property of a master rather than the child of a family. Freedom required that the right of family be restored to slaves and guaranteed to all. Enslavement turned on denying rights of self-determination and self-definition; human property lost its value if it could not be controlled. Freedom required that a measure of personal autonomy be restored to slaves and guaranteed to all. Enslavement turned finally on the denial of political status; slavery was, in Orlando Patterson’s terminology, civil death. Freedom required that political voice be restored to slaves and guaranteed to all. . . . We have, and ought to acknowledge, a choice about how we will apply the lessons of Reconstruction history."